- (1.) Heard Sri Pankaj Srivastatva, Sri D.S. Srivastava, Sri Shahid Siddiqui and Indra Raj Singh, learned counsel for the petitioners and Sri Abhishek Srivastava, learned Additional Chief Standing Counsel assisted by Sri Vikram Bahadur, learned Standing Counsel for the State. The batch of writ petitions is being heard and decided together on the consent of the parties. Petitioners are daily wagers engaged by the Forest Department of the State in various districts. Primarily, petitioners seek a direction to the respondents to pay wages minimum of the pay scale as admissible to a regular employee, as per the Government Orders issued from time to time, and pursuant to the decision of the Supreme Court rendered in State of U.P. and others vs. Putti Lal, and State of Punjab and others vs. Jagjit Singh and others. For the sake of convenience, the writ petitions have been classified in two categories, (i) Category-A are those writ petitions that seek a direction to the competent authority to consider their claim for wages equivalent to minimum of the pay scale admissible to a regular employee; (ii) Category-B writ petitions assail the order rejecting the claim of the petitioners, therein, for regularization under the U.P. Regularization of Group ''D' Employees on Daily Wage Rules, 20013 as amended from time to time. An additional relief claiming wages equivalent to minimum of the pay-scale admissible to regular employee is also prayed. Petitioners claim to have been engaged as daily wage employees and have been performing duties commensurate to a regular employee, hence, claim regularization under 2001 Rules and wages equivalent to the minimum of pay-scale admissible to regular employee. It is contended that artificial breaks in service has to be ignored while computing the continuous length of service rendered by the petitioners. The respondent-State on the other hand is disputing the claim of the petitioners and submit that merely on being engaged on daily wage the daily wager is not entitled to wages equivalent to a regular Class-D and C employees. It would depend on the nature of work and responsibility assigned to the daily wager. The claim for regularisation was considered as per the Rules, the petitioners were not found eligible for the reasons assigned in the impugned order, which is based on the facts upon perusing the record of the daily wager. It is, further, urged that primary activities of the Forest Department includes- (a) protection and conservation of flora and fauna; (b) management of forests; (c) works related to soil and moisture conservation; (d) plantation and nursery works; (e) enforcement of provisions of Forest Acts/Rules; (f) prosecution of forest offenders; (g) survey and demarcation; (h) engineering works viz. Construction or roads, bridges, culverts, residential and non-residential buildings and their maintenance; (i) creation of awareness among masses for protection and conservation of forests and wildlife and enhancement of tree cover outside forests; (j) routine office works.
(2.) The daily wage labourers are engaged on day-to-day basis as per the need and availability of budget in a particular scheme. Most of the works/activities are seasonal. These daily wagers are not selected or appointed against any regular post in accordance with the Service Rules applicable to the relevant posts/cadre. They are merely engaged for different forestry works temporarily. Therefore, daily wagers are entitled to wages in accordance with the notifications issued from time time by the Government under the Minimum Wages Act, 1948 and other allied Acts and orders. It is further urged that the daily wagers engaged by the Forest Department do not discharge duties or own responsibilities at par with regular employees. Some of the duties/ responsibilities include:- (a) A regular employee is primarily assigned with duties with regard to the forest offences, e.g., illegal mining, poaching, illicit felling, encroachment in the forest areas etc. and for effective discharge of his duty he is empowered and responsible under the provisions of the Indian Forest Act, 1927 and other Central/State Acts and Rules made thereunder. A inferior ranking regular employee directly assists his seniors in such works/duties and shoulders direct responsibilities. A regular employee is responsible for his acts/omission in the discharge of his duties. A daily wager is never subjected to such duties/responsibilities nor is he vested with powers therefor. (b) A regular Group ''D' employee discharges duty, inter alia, for the works related to plantation, raising nurseries of plants and other forestry/developmental works. A daily wager never works in such capacity but may be engaged to aid and assist in such works. (c) A regular employee is responsible to ensure that the work going on in the area is performed as per the norms/standards required by his superior officers. The issue, as to whether daily wagers are entitled to payment of wages equivalent to minimum of pay scale or not, has been examined by the Supreme Court in Sabha Shanker Dube Vs. Divisional Forest Officer and Others, wherein, following observations was made by the Court:- "9. On a comprehensive consideration of the entire law on the subject of parity of pay scales on the principle of equal pay for equal work, this Court in Jagjit Singh (supra) held as follows: 58. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities. Certainly not, in a welfare State. Such an action besides being demeaning, strikes at the very foundation of human dignity. Anyone, who is compelled to work at a lesser wage does not do so voluntarily. He does so to provide food and shelter to his family, at the cost of his selfrespect and dignity, at the cost of his self-worth, and at the cost of his integrity. For he knows that his dependants would suffer immensely, if he does not accept the lesser wage. Any act of paying less wages as compared to others similarly situate constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation.? 10. The issue that was considered by this Court in Jagjit Singh (supra) is whether temporary employees (daily wage employees, ad hoc appointees, employees appointed on casual basis, contractual employees and likewise) are entitled to the minimum of the regular pay scales on account of their performing the same duties which are discharged by those engaged on regular basis against the sanctioned posts. After considering several judgments including the judgments of this Court in Tilak Raj (supra) and Surjit Singh (supra), this Court held that temporary employees are entitled to draw wages at the minimum of the pay scales which are applicable to the regular employees holding the same post. 11. In view of the judgment in Jagjit Singh (supra), we are unable to uphold the view of the High Court that the Appellants-herein are not entitled to be paid the minimum of the pay sales. We are not called upon to adjudicate on the rights of the Appellants relating to the regularization of their services. We are concerned only with the principle laid down by this Court initially in Putti Lal (supra) relating to persons who are similarly situated to the Appellants and later affirmed in Jagjit Singh (supra) that temporary employees are entitled to minimum of the pay scales as long as they continue in service. 12. We express no opinion on the contention of the State Government that the Appellants are not entitled to the reliefs as they are not working on Group ''D' posts and that some of them worked for short periods in projects. 13. For the aforementioned reasons, we allow these Appeals and set aside the judgments of the High Court holding that the Appellants are entitled to be paid the minimum of the pay scales applicable to regular employees working on the same posts. The State of Uttar Pradesh is directed to make payment of the minimum of pay scales to the Appellants with effect from 1st December, 2018." The principles laid down by the Supreme Court in Putti Lal (supra) and Jagjit Singh (supra) have been specifically reiterated and re-enforced. In State of Punjab vs. Devinder Singh5 Supreme Court held, that daily- wagers were entitled to be placed in the minimum of the pay-scale of regular employees working against the same post. The above direction was issued after accepting that the employees concerned were doing the same work as regular incumbents holding the same post by applying the principle of "equal pay for equal work". In State of Karnataka vs. Umadevi, a Constitution Bench of the Supreme Court set aside the judgment of the High Court, and directed that daily-wagers be paid salary equal to the lowest grade of salary and allowances being paid to regular employees. Importantly, in this case, the Court made a very important distinction between pay parity and regularization. It was held that the concept of equality would not be applicable to issues of absorption/regularization. But, the concept was held as applicable, and was indeed applied, to the issue of pay parity - if the work component was the same. In State of Haryana vs. Charanjit Singh, a three-Judge bench held that the decisions rendered by the Supreme Court in State of Haryana vs. Jasmer Singh, State of Haryana vs. Tilak Raj, Orissa University of Agriculture and Technology vs. Manoj K. Mohanty and State of W.B. vs. Tarun K. Roy11 laid down the correct law. Thereupon, the Court declared that if the daily-wage employees concerned could establish that they were performing equal work of equal quality, and all other relevant factors were fulfilled, a direction by a Court to pay such employees equal wages, would be justified. In Harbans Lal vs. State of H.P., daily-rated employees were denied the claimed benefit under the principle of "equal pay for equal work", because they could not establish that the duties and responsibilities of the post(s) held by them were similar/equivalent to those of the reference posts under the State Government. In Grih Kalyan Kendra Workers' Union vs. Union of India, ad-hoc employees engaged in the Kendras were denied pay parity with regular employees working under the New Delhi Municipal Committee, or the Delhi Administration, or the Union of India, because of the finding returned in the report submitted by a former Chief Justice of India that duties and responsibilities discharged by employees holding the reference posts were not comparable with the posts held by members of the petitioner union. In State of Punjab vs. Surjit Singh, Supreme Court held that for the applicability of the principle of "equal pay for equal work", the respondents who were daily-wagers, had to establish through strict pleadings and proof that they were discharging similar duties and responsibilities as were assigned to regular employees. The authorities flagged, hereinabove, was considered in Jagjit Singh (supra).
(3.) The Court held that the daily wagers, therein, were entitled to wages on the principle of "equal pay for equal work" upon returning a finding of fact that the daily wagers were performing work similar to that of a regular employee. It, therefore, follows that the relief claimed by the petitioners for wages equivalent to minimum of the pay scale admissible to regular employee can be granted only in a case where the daily wager is able to establish - (i) through strict pleadings; (ii) proof that they were discharging similar duties and responsibilities as are assigned to regular employees. The concept of pay parity is distinct from regularisation and would not be applicable to issues of absorption/regularisation. In other words, in cases where a daily wager was not found suitable for absorption under the Rules cannot be denied pay parity provided the component of the work and responsibility of a daily wager was similar to that of a regular employee. In the backdrop of the legal proposition, upon examining the pleadings set forth by the petitioners and the stand taken by the respondents serious disputed question of fact arise in the writ petitions. The claim of the petitioners can be considered and decided upon crystallization of the relevant facts in the backdrop of strict pleadings and evidence, namely, length of service put in by the petitioners; as to whether petitioners were engaged against Group-D and C post; and whether are performing the same duties discharged by those engaged on regular basis against the sanctioned posts etc. The onus to prove the facts is upon the person claiming parity of pay. The claim of the petitioners in any case is to be considered, in the first instance, by the competent authority of the Forest Department. In the event of their claim for grant of parity of pay scale on the principle of ''equal pay for equal work' is rejected, the cause would arise to the aggrieved daily wager/workmen to take remedy under the Labour laws. The Labour Court is competent to take evidence, summon the record and return findings of fact and law. This Court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution would decline, in the first instance, to enter into disputed questions of fact. The appropriate course would be to route the petitions through the Labour Court after the decision of the competent authority of the Forest Department. The batch of the writ petitions, accordingly, stand disposed of by passing the following orders: i) claim of the petitioners for payment of wages equivalent to minimum of the pay scale of regular employee, if not considered, shall be considered by the respondent-competent authority; ii) claim of the petitioners seeking regularization under Rules, 2001 shall be considered by the respondent-competent authority, if not considered, as yet; iii) in the event of an order being passed by the competent authority as directed herein above, it would be open to the aggrieved daily wager to take remedy in accordance of law before the competent Labour Court; iv) the pending representation of the petitioners shall be considered and decided on merit by the competent authority expeditiously preferably within three months from the date of filing of certified copy of this order along with the representation and documents in support thereof provided there is no impediment; v) it is clarified that this Court has not entered into the merits of the claim and counter claim of the parties and the validity of the orders impugned rejecting the claim of petitioners for regularization under the Rules, 2001 or their entitlement to wages equivalent to minimum of the pay scale of regular employees. No Cost. ;